Recently, plaintiffs have sought to circumvent the expert report requirement in medical malpractice cases by using seemingly innocent requests for document production that target potential parties, e.g. the hospital where a physician performed the surgery at issue, under the traditional nonparty discovery rules. Requesting discovery from nonparties, however, creates a unique problem in the context of medical malpractice claims because the Texas Medical Liability Act (“TMLA”) severely limits discovery until an adequate expert report is served to each defendant.
In Texas, there are three methods of obtaining discovery from nonparties, and the appellate courts have squarely addressed two of them. In 2008, the Supreme Court held plaintiffs may not use Rule 202 pre-suit depositions in connection with a medical malpractice claim against nonparties who are potential parties to the claim because of the expert report requirement imposed by the TMLA. Relying on that Supreme Court decision, the Dallas Court of Appeals in 2015 similarly held plaintiffs may not use Rule 205 depositions to depose a nonparty physician who was a potential party to the lawsuit prior to service of an expert report because it would circumvent the expert report requirement. Yet, no appellate court has squarely decided whether a plaintiff may avoid the expert report requirement by using Rule 200 to request discovery of only documents via deposition by written questions from a nonparty, albeit potential party. Some plaintiffs have attempted to seize on what they see as the final opportunity to fish for claims against healthcare providers by using Rule 200 to request documents from potential parties.
This was the precise issue argued by B&R partner Lance Travis after a plaintiff issued a subpoena for the production of numerous documents under Rule 200 from a nonparty hospital in connection with an underlying lawsuit against a physician. While no appellate court has clearly defined the boundaries for document production in this context, Mr. Travis limited the plaintiff’s requests by arguing the hospital’s status as a potential party precluded pre-suit discovery based on precedential case law. As a result, the hospital produced nothing in response to the requests.